Norman D. Peterson - Page 8

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(B) the divorce or separation instrument does not
designate such payment as a payment which is not
includible in gross income under this section and not
allowable as a deduction under section 215,
(C) in the case of an individual legally separated
from his spouse under a decree of divorce or of
separate maintenance, the payee spouse and the payor
spouse are not members of the same household at the
time such payment is made, and
(D) there is no liability to make any such
payment for any period after the death of the payee
spouse * * *. (Emphasis added.)
For purposes relevant to the present dispute, the term
"divorce or separation instrument" underscored above means a
decree requiring a spouse to pay for the support or maintenance
of the other spouse. Sec. 71(b)(2)(C). Such a decree must be
enforceable at the time it is issued. See Taylor v.
Commissioner, 55 T.C. 1134, 1139-1140 (1971); White v.
Commissioner, T.C. Memo. 1984-65.
According to Marta, the spousal support payments made by
Norman between January 6, and June 9, 1992, do not constitute
alimony within the meaning of section 71(b)(1) because the Minute
Order incorporating the Tentative Decision was not an enforceable
divorce or separation instrument within the meaning of section
71(b)(2) at the time it was issued. On the other hand, Norman
and respondent maintain that the Minute Order incorporating the
Tentative Decision suffices under section 71(b)(2)(C) as a
support decree, thereby permitting Norman to deduct the support
payments at issue on his 1992 tax return and requiring their